A Journal by the Keck Center for International and Strategic Studies at Claremont McKenna College

Alex Whiting on ICC Ruling for Rohingya Refugees

Alex Whiting is a Professor of Practice at Harvard Law School where he teaches, writes and consults on domestic and international criminal prosecution issues. From 2010 until 2013, he was in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague where he served first as the Investigations Coordinator, overseeing all of the investigations in the office, and then as Prosecutions Coordinator, overseeing all of the office’s ongoing prosecutions. His publications include Dynamic Investigative Practice at the International Criminal Court, 76 Law and Contemporary Problems 163 (2014), INTERNATIONAL CRIMINAL LAW: CASES AND COMMENTARY (2011), co-authored with Antonio Cassese and two other authors, and In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L. J. 323 (2009).

Earlier this month, the International Criminal Court ruled that it had jurisdiction over Myanmar’s treatment of Rohingya people, in particular Myanmar’s deportation of the Rohingya to Bangladesh. Does this treatment fall under the ICC’s jurisdiction given that Myanmar is not a member of the ICC?

It does fall under the ICC’s jurisdiction now because of the ruling from the pre-trial judges. The International Criminal Court has jurisdiction when crimes are committed on the territory of a state party or by a national of the state party. Ordinarily, if a crime were committed in Myanmar, which is not a state party, it would not fall under the jurisdiction of the Court. But, the crime of deportation does because it requires sending somebody from one state to another state. In most cases, the Rohingya are being sent to Bangladesh, and Bangladesh is a state party. So the judges of the Court found that the crime of deportation—though not the other crimes that are being committed against the Rohingya generally—falls under the Court’s jurisdiction because that conduct takes place in Bangladesh, a state party.

What do you see as the next steps for the ICC now that the three judge panel has reached this determination?

Shortly after that determination was reached by the judges, the prosecutor announced that she was starting what’s called a preliminary examination with respect to the crime of deportation from Myanmar to Bangladesh of the Rohingya. A preliminary examination is a stage in a process where the prosecutor looks at all of the available evidence, most of it coming from public source information, to determine whether there is a basis to start an investigation. So, the prosecutor is looking to see if there’s evidence of crimes, if there’s evidence that the case has fallen into the jurisdiction of the Court, and if the local authorities are doing anything about it themselves. Here, I think that this preliminary examination won’t take that long because it looks like the crimes are under the jurisdiction of the Court as the judges have already found. Furthermore, nothing has been happening so far to address them. What will happen soon is that the prosecutor will announce that she is starting an investigation and then she will investigate the crimes, try to find evidence, and ultimately decide whether individuals should be charged with the crime against humanity for the deportation of the Rohingya to Bangladesh.

Is this the full extent of the role that the ICC can play? Or are there any ways in which the ICC could hold Myanmar accountable, beyond the advisory opinions?

There are two ways that the Court might be able to expand its jurisdiction. The first is focusing beyond deportation and considering a couple of other crimes. There’s inhumane treatment and persecutions, which the Court may consider investigating to the extent that they depend on the deportation crime. They might be able to add those charges, though that essentially will be examining the same conduct. The other really big opportunity for the Court to play a bigger, larger role would be if the Security Council decided to refer the case of Myanmar to the International Criminal Court. I said before that the Court has jurisdiction where the crimes are committed on the territory of a state party or by a national of a state party; but the Court also has jurisdiction if the Security Council makes a referral. It has done this twice in the past: Darfur in Sudan and Libya in 2011. There have been calls from the United Nations from the Human Rights Commission to do that here, because there is evidence of massive crimes against humanity, perhaps amounting to genocide. So while there have been demands for such a referral, it hasn’t happened yet. I am not particularly optimistic that there will be a referral because both Russia and China will likely veto such a referral, perhaps even the United States; but that is another pathway for the International Criminal Court to get involved.

With most of the Rohingya refugees currently in Bangladesh, and with Bangladesh being a member of the ICC, what role do you think Bangladesh can play in helping protect the Rohingya people and in pursuit of justice for them?

Firstly, Bangladesh has a role in protecting the refugees. There are thousands of them, they are vulnerable, and many of them have been subjected to horrific crimes including sexual violence. Many of them may be survivors of other types of attacks or have relatives who were murdered. So, they were displaced and victimized, so they require an enormous amount of support from Bangladesh and the international community. They need assistance, aid, and care because of the state that they are in. There is some evidence that they are not receiving adequate attention and care yet. Secondly, Bangladesh can play a very important role in helping the International Criminal Court conduct its investigations when it reaches the investigations stage, which again should be relatively soon. The Court depends on cooperation from its state parties in order to conduct its investigations. It has no independent police force that can just go around and collect evidence; it has to make requests and cooperate with countries. So, what it will do is it will make requests to Bangladesh asking it to collect information from the refugees, specifically evidence of the crime of deportation. The ICC will also ask for permission to come to Bangladesh to be able to interview the refugees and gain evidence of the deportation crimes being committed by Myanmar officials. So, Bangladesh will play an important role in supporting the investigation by the Court and ensuring that it can collect evidence and succeed.

Moving from the ICC to the UN in general, some journalists have lamented the inefficacy of the United Nations in protecting the Rohingya people. So, what do you think the UN should be doing, and do you have faith in the ability of the UN to make a difference?

The UN is a fragile international institution, and we are in an environment right now where international institutions are under attack all over the world. This attack is from the US administration, but also from Europe, Russia, and Africa. There is skepticism all over the world about international mechanisms and solutions, and countries are retreating from international commitments. It is a very difficult environment for the United Nations as well as other international institutions. Specifically, the UN could do three things. First, it could play a bigger role in assisting the refugees in Bangladesh by providing support and protection. The second thing is that the UN, through the Security Council, could play a bigger role by pushing back on Myanmar, using diplomatic, financial, economic, and political means. The UN could try to stop the commission of the crimes against the Rohingya people. They could use these tools-- whether it’s sanctions, economic pressure, or creating a coalition to try to pressure Myanmar. It could deploy peacekeeping troops-- to do more to support the victims and to stop the attacks and violence. The third thing the UN could do, as I mentioned, is the Security Council could vote to refer the case to the International Criminal Court. Alternatively, it could set up an independent tribunal to do it, which is what it did for the former Yugoslavia, Rwanda, and Sierra Leone. That might be a more attractive alternative for some of the countries on the Security Council. Short of that, it could find some mechanism to collect evidence and preserve it, in case there is a future possibility for accountability, either through the International Criminal Court or an independent tribunal.

You noted that we are in this environment right now where international institutions are being attacked. On that front, the US National Security Advisor, John Bolton, recently expressed US plans to sanction the ICC if the Court approves an investigation of torture allegations in Afghanistan. What implications would you see this having for the Court as it addresses current and future human rights crises, including the Rohingya crisis?

John Bolton’s speech last week about the International Criminal Court was very important and dramatic. Since 2007, the International Criminal Court has been monitoring alleged crimes in Afghanistan in the preliminary examination phase, and it has been in this phase for 10 years, just up until last year. The crimes that the court was looking at were crimes committed by the Taliban, crimes committed by Afghan government forces, and finally allegations of torture or mistreatment of detainees by US personnel in Afghanistan. Why is the Court looking at crimes in Afghanistan? The answer is because Afghanistan is a state party of the ICC, and has been one since 2003. So, the Court has jurisdiction over war crimes and crimes against humanity that are committed there. That said, the Court has been cautious about moving forward on an investigation, and it has not moved quickly. But last year, the prosecutor filed a request with the judges to get permission to start an investigation there. In that request she said the investigation would include looking at the torture allegations by US officials in 2003 and 2004. A decision from the judges is imminent, which prompted the speech from John Bolton. He said that if the prosecutor does start investigating the American officials, or similarly if the prosecutors investigate Israeli officials, then the US will react very forcefully against the Court. The US has said it will not cooperate with the Court, or provide any funding, or provide any information. John Bolton said further that the US would pressure other governments to cut funding and cut cooperation with the ICC. Moreover, Bolton said that the government would consider targeting individual prosecutors and judges from the International Criminal Court with travel bans, financial sanctions, and even criminal prosecution. It was an extremely hostile, forceful attack on the International Criminal Court from the US administration. My own view is that it would be very damaging to the Court if the US government follows through on Bolton’s threats because the Court is a pretty fragile institution. The US may have the power and the influence to persuade some countries to begin to retreat from the Court. I don’t expect the Court to disappear. It’s not going to stop existing. But, if countries cut back on the funding, if they stop cooperating with the Court, or if they stop giving it political support, then it will become much less effective and potentially irrelevant. So, it’s a serious threat to the Court. I am concerned about the Court in the next few years, as far as how strong and viable it will be.

Two Reuters journalists were arrested in Myanmar in December 2017 for investigating the murder of ten Rohingya men and boys in a village in the Rakhine state. How do these arrests factor into the crisis? Does the detention of the journalists give the United States or other Western countries a larger political stake?

That kind of attack on journalists is an assault on basic principles and freedoms and therefore goes right to the heart of our principles and what we stand for as a country. The attack adds to the picture here of the assault on rights and on minorities that is occurring in Myanmar. Journalists play an enormously important role in the world of international criminal law, as well as enforcement of the law and of norms. Often journalists are the first responders; they are the ones who get the information and the stories out. They are the first to signal a crisis. The international accountability mechanisms, like the International Criminal Court, are heavily reliant on both international and domestic journalists to uncover this information and bring it to light. Sometimes journalists can be used to help collect information or leads that could help the ICC investigators in their work. Hence, this is an incredibly alarming development. Of course, journalists today are under assault around the world. Governments target journalists precisely because of the important role that they play in exposing this conduct, this abuse and corruption. And even here in the United States, we have seen journalism and journalists under attack from the administration. Unfortunately I don’t think this episode will capture the attention of the administration because of its attitude towards journalists and towards international engagement. Hopefully, though, it will capture the attention of other governments and organizations, and will further illustrate the gravity of the threat to people, minorities, and liberties in Myanmar.

Finally, I would add that the international criminal law project, which now is embodied in the International Criminal Court but has been embodied in lots of institutions since Nuremberg. It is a remarkable achievement that has occurred in my lifetime. I worry that it is very much under assault right now, not just from the US administration but from around the world. The hope is that the desire to have accountability for these crimes will endure and can expand in the future. Until that happens, we will be dependent on committed people and committed journalists to keep collecting information and preserving it.